Complying with Water Quality Laws & Regulations Arkansas Water Laws & Regulations September 24, 2020 Jordan P. Wimpy
Topics to Discuss: • Background refresher on Clean Water Act • Developments at the federal level • WOTUS Step II • Maui • 401 Water Quality Certifications • Residual Designation • Developments at the state level • APCEC Rule 6 • Triennial Review • Antidegradation Implementation Methodology
Clean Water Act 101: A Return to Basics Objective: The objective of [the CWA] is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.
Clean Water Act 101: A Return to Basics Water Quality Standards: A water quality standard defines the water quality goals of a waterbody, or portion thereof, by designating the use or uses to be made of the water and by setting criteria that protect the designated use.
Clean Water Act 101: A Return to Basics Designated Uses: 1. Protection and propagation of fish, shellfish, and wildlife 2. Recreation 3. Public drinking water supply 4. Agricultural, industrial, navigational, and other purposes. Criteria: Water quality criteria can be numeric (e.g., the maximum pollutant concentration levels permitted in a waterbody) or narrative (a criterion that describes the desired conditions of a waterbody being “free from” specific negative conditions.
Clean Water Act 101: A Return to Basics The Prohibition: “Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342 , and 1344 of this title, the discharge of any pollutant by any person shall be unlawful .”
Clean Water Act 101: A Return to Basics The Exception(s): “Except as provided in sections 1328 and 1344 of this title, the Administrator may, after opportunity for public hearing issue a permit for the discharge of any pollutant, or combination of pollutants …” Clean Water Act, 33 U.S.C. § 1342(a)(1) -- Section 402
Clean Water Act 101: A Return to Basics The Exception(s): The Secretary may issue permits , after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites. Clean Water Act, 33 U.S.C. § 1344(a) -- Section 404
WOTUS 9
WOTUS: Now Just Four Categories Territorial Seas and traditional navigable waters – (a)(1) Tributaries – (a)(2) Lakes and ponds, and impoundments of jurisdictional waters – (a)(3) Adjacent wetlands – (a)(4)
(a)(1) Territorial seas and traditional navigable waters The territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide. Key Changes Combines the categories of traditional navigable waters and territorial seas No substantive changes
(a)(2) Tributaries “Tributary” means a naturally occurring surface water channel that contributes surface water flow to a paragraph (a)(1) water in a typical year either directly or through one or more paragraph (a)(2)-(4) waters. A tributary must be perennial or intermittent in a typical year. Additional Explanations: • A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. • The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to satisfy the flow conditions of the definition. • The term tributary includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch satisfies the flow conditions of this definition. • The Step II Rule does not change the existing regulations for establishing the lateral limits of federal jurisdiction for tributaries.
(a)(2) Tributaries Key Changes: Declined to implement any portion of the case-specific significant nexus test Deleted all notion of jurisdictional status over ephemeral streams
(a)(2) Tributaries Perennial: • The term perennial means surface water flowing continuously year-round. Intermittent: • The term intermittent means surface water flowing continuously during certain times of the year and more than in direct response to precipitation ( e.g. , seasonally when the groundwater table is elevated or when snowpack melts). Ephemeral: • The term ephemeral means surface water flowing or pooling only in direct response to precipitation ( e.g. , rain or snow).
(a)(3) Lakes and ponds, and impoundments of jurisdictional waters This category of waters means standing bodies of open water that contribute surface water flow to a paragraph (a)(1) water in a typical year either directly or through one or more paragraph (a)(2)-(4) waters. Additional Explanations: • A lake, pond, or impoundment does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature ( e.g. , an ephemeral stream, non-jurisdictional ditch), through a culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. • A lake, pond or impoundment is also jurisdictional if it is inundated by flooding from a paragraph (a)(1)-(3) water in a typical year.
(a)(3) Lakes and ponds, and impoundments of jurisdictional waters Key Changes: • Similar to the current rule, which regulates lakes and ponds as part of the tributary network, but the new rule clarifies that other kinds of surface hydrologic connections ( e.g. , inundation by flooding from an (a)(1)-(3) water) can also render lakes, ponds, and impoundments jurisdictional. • Impoundments of jurisdictional waters are non-jurisdictional if they do not contribute surface flow to a downstream traditional navigable water or territorial see in a typical year.
(a)(4) Adjacent wetlands: This category includes wetlands that: • abut, meaning to touch at least at one point or side of, a paragraph (a)(1)-(3) water; • are inundated by flooding from a paragraph (a)(1)-(3) water in a typical year; • are physically separated from a paragraph (a)(1)-(3) water only by a natural berm, bank, dune, or similar feature; or • are physically separated from a paragraph (a)(1)-(3) water only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection in a typical year through a culvert, flood or tide gate, pump, or similar artificial feature.
(a)(4) Adjacent wetlands: Additional Explanations: • An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic connection through or over that structure in a typical year. • Does not change the agencies’ longstanding definition of “wetlands. Key Changes: • Revised the longstanding definition of “adjacent.” • No wetlands are evaluated on the case-specific significant nexus test.
WOTUS: The Exclusions Waters not listed as WOTUS Groundwater Ephemeral features Diffuse stormwater run-off Ditches not identified as WOTUS Prior converted cropland Artificially irrigated areas Artificial lakes and ponds Water-filled depressions incidental to mining or construction activity Stormwater control features Groundwater recharge, water reuse, and wastewater recycling structures Waste treatment systems
The Litigation … Multiple lawsuits filed (many before the rule event went final). Currently the new WOTUS Step II rule is effective in all states and territories except the State of Colorado E.g. – • State of California, et al. v. EPA, No. 3:20-CV-2005 • South Carolina Coastal Conservation League v. Wheeler, No. 2:19-CV-03006 • New Mexico Cattle Growers Ass’n. v. EPA , No. 1:19-CV-00988 • State of Colorado v. Wheeler, No. 20-CV-1461
Maui 21
County of Maui v. Hawaii Wildlife Fund • Most important CWA case since Rapanos (2006) • Question Presented: Whether a point source discharge to groundwater requires an NPDES permit if the pollutants reach navigable waters • Two Surprises: • A totally new test for CWA jurisdiction • An unexpected line-up of votes
Lahaina Wastewater Reclamation Facility Factual Background • LWRF constructed in 1976 • Expanded in 1985 • Effluent used for irrigation • 4 Class V injection wells used for backup • Agricultural reuse ends 1999-2009 • Current injection rate ≈ 4 MGD • Population served ≈ 40,000 • R-1 reuse of some water continues
Controversy Develops • 2007: SCUBA researchers identify submarine seeps near shoreline • 2007-2013: Multiple studies confirm LWRF effluent flows to the seeps • EPA & Hawaii equivocate on NPDES requirement • Public protest builds
Chronology of the Case 2012 Citizen suit filed 2014 USDC holds NPDES permit Is required 9 th Circuit affirms 2018 2/19/19 Certiorari granted 11/6/19 SCOTUS hears oral argument 4/23/20 SCOTUS vacates & remands
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